- (1.) By means of this writ petition, the petitioner has prayed for quashing the order dated 10.2.2010 passed by Special Judge , Gangster Act, Varanasi and the order dated 6.8.2009 passed by the District Magistrate, Varanasi. The petitioner has also prayed to command the respondents by issuing a writ of mandamus to release his property consisting of House No. C-17/41, situated at Mohalla Lahang, P.S. Sigra, District Varanasi in favour of the petitioner. Heard Shri Brijesh Yadav, learned counsel for the petitioner, learned AGA appearing for the State and perused the record. Some background facts in brief are that a criminal case under Section 3(1) U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "Gangster Act") was lodged against the husband of the petitioner at Crime No. 729 of 2008 at P.S. Sigra, Varanasi. In Gang chart two separate offences were shown against the applicant i.e. Case Crime No. 11 of 2006 under Section 302, 120-B IPC P.S. Sigra, Varanasi and Case Crime No. 297 of 2008 under Section 302 IPC and Section 7 Criminal Law Amendment Act at P.S. Sigra, District Varanasi. The S.O. Sigra submitted a report on 28.11.2008 through S.S.P., Varanasi to District Magistrate, Varanasi stating that the property of the accused, (the details of which are mentioned above), was acquired by him as a result of commission of offence triable under the Gangster Act. The District Magistrate, Varanasi issued a notice to the applicant/petitioner and attached the property vide his order dated 15.1.2009. The applicant-petitioner filed her objections alongwith her affidavit before the District Magistrate, Varanasi, but the District Magistrate Varanasi, refused to release the attached property in favour of the petitioner. As per the provisions of Section 16(1) of Gangster Act, the District Magistrate, on 17.8.2009 referred the matter to Special Court constituted under Gangster Act, Varanasi. Being aggrieved by such order of refusal, the applicant also moved an application under Section 16(2) of the Gangster Act.
(2.) The learned Special Judge, Gangster Act, Varanasi vide order dated 10.2.2010 rejected her application on the ground that the applicant has failed to produce any document to show from what source of income the said house was purchased in the year 1999 and from what source of income the petitioner and her husband have raised further constructions in the house.
(3.) Learned counsel for the petitioner has challenged both the aforesaid orders passed by District Magistrate and Special Judge, Varanasi by contending that the property that has been attached was not acquired by the husband of the applicant/petitioner as a Gangster. The said house was purchased by the applicant by their joint income as both of them are in the business of glass for last more than 15 years. They have raised the house further by obtaining a loan of Rs. 8,00,000/- from Kashi Gramin Bank. Learned counsel for the petitioner has argued that in order to prove these averments the petitioner/applicant had filed before the Courts below the income tax returns of herself and her husband. She had also filed the original copy of notice of Kashi Gramin Bank dated 27.11.2009 issued to applicant and her husband with regard to loan. But learned District Magistrate and learned Special Judge without any reason, presumed that the property was acquired by the husband of petitioner by commission of crime.;